Spirulina faces legal questions

Spirulina, the blue colour from algae used in Nestlé’s Smarties, is one of 10 substances used to colour food that faces an uncertain future as its legal status is scrutinised.

The Food Standards Agency (FSA), which has been asked by the European Commission (EC) to ‘road-test’ the 10 substances to establish their regulatory status, has now received feedback from industry and has written to European trade associations asking for their views by the end of May.

It will then submit a report in the autumn in time for a meeting of the Commission’s working group of food additive experts from Member States, said a spokeswoman. “It will be for that group and the Commission to decide how to proceed.”

Foods or additives?

The issue at stake is whether the substances are colouring foodstuffs (ie legal food ingredients) or additives, which must be pre-approved. This is an important distinction as colouring foodstuffs are classed as food ingredients and hence not assigned E-numbers, while natural colours are classed as additives and assigned E-numbers because they have been ‘selectively extracted’ from their natural sources.

However, the definition of ‘selective extraction’ has not itself been pinned down, causing some confusion in the market as different firms were interpreting the legislation in different ways. One industry source told foodmanufacture.co.uk: “Manufacturers will go to three different suppliers for a definition and get three different answers. They then pick the one they like the best.”

Another added: “The retailers also have different definitions of what is ‘natural’. Some argue that only colouring foodstuffs are natural, some say that anything derived from a natural source is natural.” Consumers, meanwhile, were baffled as ‘natural’ colours still had E-numbers, and many shoppers equated ‘E’ with artificial, he said.

If they are deemed to be food additives, they will need to go through a costly and lengthy authorisation process to gain regulatory approval set out in EC Regulation 1331/2008 if food and drink manufacturers want to use them in their products.

Spirulina is currently used in several own-label bakery and confectionery products as well as Smarties, while many of the other substances on the list are widely used in food and drink products sold in the UK.

Legal clarity for food and drink manufacturers

The FSA’s road testing exercise would provide clarity for the market, said GNT, a leading supplier of colouring foodstuffs.

An FSA spokeswoman said: “The purpose of the exercise is to ensure that the EU has principles that can be applied to any product that might be considered for use as a colouring foodstuff/food colour to decide whether it has been selectively extracted.” Nestlé UK regulatory affairs manager Richard Wood said: “We’ve been asked to submit evidence to prove why we believe these substances are colouring foodstuffs. But it may be that some of them are reclassified as illegal additives and we are not allowed to use them anymore.”